Amit Talukdar, J. - (1.) This appeal is directed against the judgment and order dated May 18, 2001 passed by Shri A. R. Shah, learned Judge, Special Court (under the N.D.P.S. Act), Alipore, 24-Parganas (South) in Sessions Trial No. 1(5)99. The learned Trial Court after having found that the charge of section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the said Act) having been proved against the appellant for carrying 380 grams of heroin in a plastic bag, sentenced him to suffer rigorous imprisonment for ten (10) years and directed him to pay a fine of Rs. 1,00,000/- (Rs. one lakh), in default, to suffer further rigorous imprisonment for a period of one year.
(2.) Shri Sekhar Kumar Bose, learned Counsel appearing on behalf of the appellant duly assisted by Shri Debasish Roy and Shri Somnath Banerjee submitted that from the evidence it would appear that although there was prior information received by P.W. 1 the said information was not recorded and there was violation of section 42 of the said Act and the Deputy Commissioner of Excise, who informed P.W. 1 about the secret information, was also not examined. He submitted that the violation of section 42 of the said Act and the failure of the prosecution to examine the said Deputy Commissioner, who had initially received the secret information, cast a suspicion on the entire foundation of the prosecution case. Shri Bose referred to the decisions of Koluttumottil Razak vs. State of Kerala, 2000 SCC (Cri) 829 and Abdul Rashid Ibrahim Mansuri vs. State of Gujarat, 2000 SCC (Cri) 496 to substantiate his point that non-recording of the information received by the raiding team leads to infraction of section 42 of the said Act.
(3.) He further submitted that the provisions of section 50 of the said Act were not at all complied with. Shri Bose argued -that as the raiding team apprehended the appellant on the basis of a prior information and there was search of the appellant the provisions of section 50 of the said Act would be applicable; but, the procedural formalities relating to the provisions of the said Act were not complied with. He submitted that the Gazetted Officer ought to have been an independent officer and not a member of the raiding team. He referred to the decision of Ahmed vs. State of Gujarat, 2000 SCC (Cri) 1407 on this point.;